Is the ICC Decision a Bridge to Nowhere?

[editor's note: a summary of this very long, but very valuable article. The ICC decision that suspected Israeli war crimes can be lodged by the PA has led to considerable rejoicing, but it may be incorrect because of these matters. 1) The ICC says Palestine is a "state" under the Rome Statue, a state different than Israel, 2) But the PA that runs Palestine had (foolishly) agreed that any Israeli suspected of crimes in its areas was to be handed over to Israeli justice, 3) if the occupied territories are not a "state" and just part of apartheid Palestine/Israel the power of "Palestine" to file complaints to the ICC disappears, 4) the ICC only takes up cases when a good-faith investigation hasn't taken place. Israel always has "investigations", that go through the motions and almost never find fault with their soliders. So the legal analyst thinks this all is a "bridge to nowhere".]

by Sara Roy and a colleague who is a legal analyst.

I received this from a colleague who is a legal analyst. Please read it for some much needed clarity on the ICC issue. I've combined comments from several emails. Sara Roy

The ICC decision poses some consequential political-strategic questions. It confirms that (1) Palestine is a state by virtue of a UNGA resolution as well as the State of Palestine's subsequent accession to the ICC Rome Statute and bona fide membership in the ICC Assembly of States, and (2) the territorial jurisdiction of the ICC is defined by the UNGA resolution, that stipulates the "Palestinian territory occupied since 1967." If, however, one accepts B'Tselem's conclusion in its recent position paper that one State based on Jewish supremacy exists between the Mediterranean and the Jordan, it in effect signals that there isn't a State of Palestine and the Court's jurisdiction is not the oPt. So, the question arises, does one preserve the oPt paradigm to keep alive the ICC case, or drop that paradigm in favor of the B'Tselem paradigm of One State, in which case the ICC litigation has been superseded by the passage of time? To repeat: If One State exists between the Mediterranean and Jordan, there's no State of Palestine to lodge a complaint with the ICC. What remains is a kind of political incoherence or schizophrenia: purporting that Palestine is a State within the oPt for the sake of the ICC litigation, but also purporting before the broad public that there's only One State between the Mediterranean and Jordan, as Israel has de facto annexed the oPt. That will be a most unpersuasive position to publicly maintain, as it appears opportunistic and hypocritical.

There's broad lack of understanding on what the Court ruled.

The strongest argument on the Palestine side was that Palestine was a State according, not to public international law, but according to the Rome Statute. The Rome Statute is an "all-States" treaty. That is, any bona fide State can "access" (join) it. The UNGA stated that Palestine was a State. Palestine then accessed the Rome Statute. It acquitted itself like a State for many years. It belonged to the ICC Assembly of States. The obvious conclusion was, if it met the "all-States" criterion and no member State of the ICC (partly excepting Canada) objected to its membership in the ICC, then it was a State for the purposes of the Rome Statute. This was what the Pre-Trial Chamber (PTC) ruled yesterday.

However, the strongest argument on the Israeli side was that, according to the 1993 Oslo accord, the Palestinians handed over to Israel all criminal jurisdiction pertaining to Israelis in the oPt. There are arguments to counter this, but they are convoluted and, on balance, feeble. The PTC stated yesterday that it would decide this jurisdictional question after the Chief Prosecutor commences her investigation. In other words, it hasn't yet ruled on this point. I did not realize that the Pre-Trial Chamber could neatly split the question in half, so as to resolve one aspect of jurisdiction now (is Palestine a State for the purposes of the Rome Statute?) and one aspect of jurisdiction later (can the State of Palestine hand over criminal jurisdiction in the oPt to the ICC if it already handed over to Israel criminal jurisdiction of Israelis?). The dissenting Judge Kovacs made the point of how odd this was. Kovacs is a dishonorable man but here I think he was right. I do not believe the Palestinian side can overcome the Oslo hurdle unless it dissolves and says the Oslo accord is dead; that, for sure, the PA will not do.

The Palestinians signed the Oslo agreement. The agreement says that in all criminal cases involving Israelis in the occupied Palestinian territories (oPt), Israel has criminal jurisdiction. If an Israeli commits a crime in the oPt, the Palestinian security forces must hand the alleged perpetrator over to Israel. That's why you never hear about an Israeli tried in a Palestinian court. Now, the essence of joining the ICC is, you're saying: We (the Palestinians) won't prosecute people of war crimes, crimes against humanity, genocide, we'll cede criminal jurisdiction to the ICC. The ICC should prosecute all such crimes. But the Palestinians at Oslo already handed over to Israel the power to prosecute Israelis in the oPt. There's this basic legal principle: nemo plus iuris transferre potest quam ipse habet (no one can transfer a greater right than he himself has).

The PA can't transfer to the ICC power it no longer has: it already transferred the power to prosecute Israelis in the Oslo accord. Now, it can be argued that the Oslo accord was signed under duress (a gun to its head), and under the Fourth Geneva Convention, such an "agreement" would not hold up if basic Palestinian rights had been forfeited. It can be argued that it's a basic Palestinian right that perpetrators be prosecuted for their criminal acts, but Palestinians were coerced at Oslo to forfeit this right of prosecution, so the agreement is null and void, as it violates basic Palestinian rights as an occupied people protected by the Geneva Convention. But there's one big hitch with that argument. The Oslo accord technically expired more than a decade ago. If the PA didn't like it, they could simply have renounced it, walked away from it, and then wouldn't be bound by the clause transferring criminal jurisdiction over Israelis to Israel. But they haven't renounced it. That's why during the summer the ICC Pre-Trial Chamber sent a letter of inquiry to the PA: do you or do you not still support the Oslo accord? They answered evasively, but effectively said, Yes, we still consider ourselves bound by it.

Now, in the current ICC decision, it says in the very last three paragraphs that the issue of whether the Oslo accord bars intervention by the ICC will be determined later in the investigation, when it comes time for the Prosecutor to ask Israel to hand over potential defendants. Israel then has the right to claim its own jurisdiction over these criminal cases. So long as the PA won't renounce the Oslo accord, it can't win. Now, do you believe Palestinian officials will renounce Oslo and the enormous perks they have accrued as a result of the accord?

I have here only discussed one of the jurisdictional barriers still pending. There's another: the technical term is "complementarity." If it can be shown that a country has carried out good-faith investigations of alleged war crimes committed by its nationals, then the ICC has no jurisdiction according to the Rome Statute. That's why Israel conducts all these fake investigations after each of its massacres. So it has "evidence" ready at hand that it conducted "good-faith investigations." Unfortunately, this same issue came up in the ICC investigations of war crimes committed by UK troops in Afghanistan. The UK defense of having conducted good-faith investigations was accepted by the ICC even as all of one Brit was convicted in the UK courts, and that only by a fluke. So, if Israel uses this defense of having already conducted good-faith investigations of its own, thus preempting an ICC intervention, it will almost certainly also stand up based on the UK precedent. My bottom line is the ICC is a bridge to nowhere. Better to follow B'Tselem's lead, say that there is no occupied Palestinian territories, no State of Palestine, but only one Jewish supremacist state from the Jordan to the Mediterranean that denies Palestinians their basic rights.

Here is what we know, and what we can surmise:

1. The Prosecutor posed a question to the Pre-Trial chamber: Does the ICC have jurisdiction over the State of Palestine's referral to it? In order to have jurisdiction, the State of Palestine must be a State. Also, for the ICC to have jurisdiction, the territorial delimitation of its borders must be established, otherwise, it's unclear who would be liable to prosecution within the putative State of Palestine.

2. Israel and international lawyers supporting it submitted a mountain of briefs, as did the State of Palestine and international lawyers supporting it. (I read the entire file multiple times, to gain clarity on the issues.)

3. Among the key contentious issues were these: (A) Was Palestine a State under public international law? (B) Was Palestine a State under the terms of the Rome Statute?, (C) Did the Oslo accord preclude ICC jurisdiction in this referral?

4. It was my understanding at the time that the Court would rule one way or another: Either the ICC did or didn't have jurisdiction? My feeling was, Israel won on Points (A) and (C), while Palestine won on Point (B).

5. The Court, however, did something clever. It said that point (A) was irrelevant, on point (B) Palestine wins, and we'll decide on point (C) later in the investigation. In fact, on the part of the jurisdictional question that the Court ruled on, it did the right thing: based on the Rome Statute, Palestine was indeed a State.

6. However, based on the Oslo accord, Israel has jurisdiction; this is incontestable as it's written into the accord at several junctures (Israeli lawyers are punctilious in protecting Israeli rights). The only argument Palestinians had was, Oslo was signed under duress and, as such, could not negate Palestinian basic rights protected by the Fourth Geneva Convention. That argument, however, was dead in the water, as Oslo effectively ended in 1999, but the Palestinians de facto chose to extend it. So, once this point comes before the Court, as Israel refuses to hand over any of those indicted by the ICC prosecutor, Israel will almost certainly win.

7. Why did the Court split the jurisdictional question-Palestine is a State, but we'll decide later whether Oslo bars further investigation? Simple. If it killed the case at this juncture, it would appear as if it capitulated to US/Israeli pressure. It would also have been a smack in the face at the ICC itself, as the ICC Assembly of States treated Palestine as a State since 2015. But when the case of jurisdiction next arises over the Oslo clauses guaranteeing Israeli jurisdiction over criminal cases, the Pre-Trial Chamber will inevitably decide in Israel's favor and it will say, "We decided once in Palestine's favor, once in Israel's favor, you see, we're balanced." Of course, the decision in Israel's favor will kill the case.

I would want to stress that this is only one seemingly insurmountable legal obstacle. The other is the principle of "complementarity." That simply means, the ICC can only kick in on a referral if the State of the alleged perpetrators didn't carry on "good-faith" investigations of its own of the alleged crimes by its nationals. Based on the recent precedent of the preliminary ICC investigation of British troops in Afghanistan, the ICC will never indict Israel. The British investigations were a grotesque sham, but the Chief Prosecutor nonetheless ruled that the British investigations were carried out in good faith even as they resulted in one conviction (by a fluke). The essence of the Prosecutor's decision to close the Iraq investigation was that, henceforth, there will not be any indictments in the ICC against Western "democratic states." All they have to do is carry out bogus "good-faith" investigations and the ICC will give them a pass

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